Hasmat Rai & ANR Vs. Raghunath
Prasad [1981] INSC 103 (28 April 1981)
DESAI, D.A.
DESAI, D.A.
PATHAK, R.S.
VENKATARAMIAH, E.S. (J)
CITATION: 1981 AIR 1711 1981 SCR (3) 605 1981
SCC (3) 103 1981 SCALE (1)714
CITATOR INFO :
R 1985 SC 207 (16) E&D 1987 SC 406 (6) R
1987 SC 741 (12,13) D 1988 SC 30 (5) RF 1991 SC1760 (20,23) RF 1992 SC 700 (4)
ACT:
Madhya Pradesh Accommodation Control Act,
1961-Scope of section 12(1) (f)-Bonafide requirement under section
12(1)(f)-Landlord filing two eviction suits and acquiring possession of a major
portion of the suit premises through an eviction order passed in one of
them-Whether this acquisition amounts to the landlord "has a reasonably
suitable non-residential accommodation of his own in his occupation in the city
or town concerned' within the meaning of section 12(1)(f) of the Act-Noticing
of such event subsequent to the passing of the decree for eviction in the other
eviction suit, whether a must by the Court-Propriety of refusal of leave to
amend the written statement under order VI rule 17 Civil Procedure Code by the
High Court.
HEADNOTE:
The respondent-landlord filed two eviction
suits for recovery of possession of a non-residential building which were in
occupation of a firm Goraldas Parmanand and the appellant-tenant. The portion
occupied by the appellant including the frontage was 7x22. In the view of the
fact that the landlord obtained eviction order against the firm Goraldas
Parmanand on the ground that the building was required for the purpose of
reconstruction and repairs and also for bona fide requirement, in the later
eviction suit filed against the appellant, in para 4 of the plaint the landlord
stated that he was in possession of a major portion of the non-residential
building which he obtained from the firm M/s. Goraldas Parmanand. The appellant
contested the eviction suit filed against him on the ground, (a) that the
premises was not in dilapidated condition and did not, therefore, need
reconstruction and repairs and (b) that the landlord in view of his own
admission in the plaint at para 4 has a reasonable suitable non-residential
accommodation of his own and therefore cannot claim his eviction under section
(12)(1)(f) of the Madhya Pradesh Accommodation Control Act, 1961.
The trial court rejected the tenant's pleas
and passed an eviction order. In appeal the first appellate court, while
confirming the finding of the trial court that the building was in a
dilapidated condition and required re- construction and repairs, held that even
though the landlord obtained a decree against the firm Goraldas Parmanand, he
had not got actual possession, as the litigation was still pending and,
therefore, the plaintiff's requirements of the whole building was established.
In the second appeal before the High Court,
an application under Order VI, Rule 17, Code of Civil Procedure, was made
praying for an amendment to the written statement alleging that the firm
Goraldas Parmanand has vacated the entire portion of the premises in his
possession and the plaintiff-landlord has obtained actual possession of a major
portion of the building and if this aspect was taken into consideration the
plaintiff-landlord would not be entitled to a decree for eviction under section
12(1)(f) of the Act. The High Court rejected 606 the application observing that
the adjoining portion occupied by firm Goraldas Parmanand was vacated by the
firm as for back as in the year 1972 and, therefore, the application for
amendment filed 3-1/2 years after the filing of the second appeal must be rejected.
Further it was of the view that the definition of "tenant" in the
Madhya Pradesh Act would not enable a tenant, though in possession but against
whom a decree or order for eviction has been made, to invite the court to take
notice of events subsequent to the passing of the decree for eviction by the
trial court.
The High Court, accordingly confirmed the
decree for eviction hence, the appeal by the tenant after obtaining special
leave of the Court.
Allowing the appeal and remanding the matter
to the first appellate court with directions, the Court
HELD: 1. Before an allegation of fact to
obtain the relief required is permitted to be proved, the law of pleadings
require that such facts have to be alleged and must be put in issue. Any amount
of proof offered without pleadings is generally of no relevance. In order to be
able to seek eviction of a tenant under section 12(1)(f) of the Madhya Pradesh
Accommodation Control Act, 1961, the landlord has to allege and establish (i)
that he bonafide requires the accommodation let to the tenant for
non-residential purposes for the purpose of continuing or starting his business
and (ii) that he has no other reasonably suitable non-residential accommodation
of his own in his occupation in the city or the town concerned. The burden to
establish both the requirements of section 12(1)(f) is squarely on the
landlord. [610 H, 611 A, 612 D and F]
2. The application under Order VI Rule 17,
Civil Procedure Code, in view of the averments in the written statement is
wholly superfluous. However, in view of the pleadings in the instant case, it
must be granted because "the burden of proof of establishing that the
landlord was not in possession of a reasonably suitable accommodation in the
same town was on the plaintiff" it was wrongly rejected by the High Court
on untenable ground that the defendant- appellant was guilty of delay and
laches ignoring incontrovertible admitted position which would non-suit the
respondent-plaintiff. [613 E-G] 3:1. The definition of expression "tenant"
in the Madhya Pradesh Accommodation Control Act, 1961 excludes from its
operation a person in possession against whom any order or decree for eviction
has been made. The decree means the decree of the final court. This is so
because once an appeal against decree or order of eviction is preferred, the
appeal is a continuation of suit. [615 C, 616 B] 3:2. When an action is brought
by the landlord under Rent Restriction Act for eviction on the ground of
personal requirement, his need must not only be shown to exist at the date of
the suit, but must exist on the date of appellate decree, or the date when a
higher court deals with the matter. During the progress and passage of
proceeding from court to court if subsequent events occur which if noticed
would non-suit the plaintiff. the court has to examine and evaluate the same
and mould the decree accordingly. The tenant is entitled to show that the need
or requirement no more exists by pointing out such subsequent events, to the
court including the appellate court. Otherwise the landlord would 607 derive an
unfair advantage, and it would be against the spirit or intendment of Rent
Restriction Act which was enacted to fetter the unfettered right of re-entry.
In such a situation it would be incorrect to say that as decree or order for
eviction is passed against the tenant he cannot invite the court to take into
consideration subsequent events. But the tenant can be precluded from so
contending when decree or order for eviction has become final. [616 C- G]
Pasupuleti Venkateswarlu v. The Motor and General Traders, [1975] 3 S.C.R. 958,
followed.
Taramal v. Laxman Sewak and Ors., 1971 Madhya
Pradesh Law Journal p. 888, overruled.
3:3. In the instant case; (i) relying on the
admission of the plaintiff himself that he has in his possession a shop
admeasuring 18/x68 plus 7/x68 forming part of the same building and his failure
to state that the space with 18 frontage is neither suitable not reasonably
suitable nor sufficient for starting his business as Chemist and Druggist, the
plaintiff's suit for eviction on the ground mentioned in section 12(1)(f) of
the Madhya Pradesh Act must fail; (ii) the finding of the courts below that the
respondent requires possession of the whole of the building including the one
occupied by the tenant for starting his business as Chemist and Druggist as
also for his residence is vitiated beyond repair. The observation of the High
Court that the remaining portion of the premises would be used by the landlord
for his residence and even though the portion utilised for the purpose of
running the business would be smaller compared to the one to be utilised for
the residence it would still not be violative of sub-section (7) of section 12
because such a composite user would not radically change the purpose for which
the accommodation was let, is contrary to records and pleadings. [618 B-C, D-F,
619 B-C] 4:1. In order to obtain possession under section 12(1)(h) of the
Madhya Pradesh Act the landlord has to establish his bonafide requirement of
the accommodation in possession of the tenant for the purpose of building or
rebuilding or making thereto any substantial additions or alterations and must
further show that such building or re- building or alterations cannot be
carried out without the accommodation being vacated. If the landlord succeeds
in his prayer for possession on the ground mentioned in section 12(1)(h), it
would be necessary for the court to give appropriate directions under section
18 of the Act. [619 F- G, 621 BC] 4:2. Here, as the matter has not been
examined from this angle by any court, even though the litigation is pending
for a long time, the case requires to be remanded to the first appellate court
to ascertain: (i) whether the landlord is interested in re-constructing that
portion of the building which is in possession of the tenant as demised
premises; (ii) whether the landlord would be in a position to reconstruct the
building in his possession without the tenant being required to vacate the
demised premises and (iii) if the first two queries are answered in favour of
the landlord, what should be the appropriate directions to be given in favour
of the tenant as enjoined by section 18 of the Act. [621 C-F] 608 Per Pathak,
J. (Concurring)
1. In a proceeding for the ejectment of a tenant
on the ground of personal requirement under a statute controlling the eviction
of tenants, unless the statute prescribes the contrary the requirement must
continue to exist on the date when the proceeding is finally disposed of,
either in appeal or revision, by the relevant authority. Here, the High Court
should have allowed the application for amendment of the written statement
under Order VI Rule 17, Civil Procedure Code. [624 E-F]
2. Before the need for personal residence can
be held proved, several considerations need to be proved under section 12(1)(e)
of the Act. The omission to draw the attention of the High Court to the fact
that the need for personal residence was never pleaded in the plaint led the
High Court to fall into error in taking this element into account. [625 B-C]
Per Contra:
3:1. In the instant case, it is clear from
the concurrent findings of the courts below that (a) the respondent has made
out his case under section 12 (1)(h) of the Act that he requires the building
including the portion occupied by the appellants for the re-construction of the
front portion and repairs to the rear portion and that necessitates that the
appellants vacate their accommodation and (b) the respondent needs a portion of
the building for starting the business of a medicine shop. [625 E-G] 3:2.
Whether or not the shop should be located in the front portion of the building
and what should be the dimensions of the proposed Chemist and Druggist shop
will turn on the evidence adduced by the parties in that behalf, Giving a
finding on this point, in the circumstances of this case, is pre-eminently a
task to be entrusted to a subordinate court. The questions for consideration by
the appellate court are: (i) what should be the location of the shop and what
should be the dimensions in the matter and (ii) availability of the benefit
under section 18 of the Act to the appellants. [625 D-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1108 of 1976.
Appeal by special leave from the judgment and
order dated the 17th April 1976 of the Madhya Pradesh High Court in Second
Appeal No. 113 of 1969.
S.K. Mehta, P.N. Puri and E.M.S. Anam for the
Appellants.
P.P. Juneja for the Respondent.
The following Judgments were delivered DESAI,
J. A tenant under a decree of eviction is the appellant in this appeal by
special leave.
609 Respondent landlord filed a suit for
recovery of possession of premises being a small shop admeasuring 7'X 22'
forming part of a big non-residential building situated in Sadar Bazar,
Bilaspur town in Madhya Pradesh on two grounds, to wit: (i) that he (landlord)
intended to open a medicine shop and he had no other reasonably suitable
accommodation for the same in the town; and (ii) that he (landlord) required
the suit building for the purpose of reconstruction and repairs which could not
be carried out unless it was vacated by the defendant. The tenant resisted the
suit pointing out that the landlord on his own admission as set out in plaint
para 4 was in possession of a major portion of a non-residential building of
which he acquired possession from the firm of Goraldas Parmanand which
accommodation was sufficient for starting the business of Chemists and
Druggists shop. It was also contended that the building was not in a
dilapidated condition and did not need reconstruction and repairs.
The trial court recorded a finding that the
building was in a dilapidated condition and reconstruction of it was essential
and the landlord had sufficient funds to undertake reconstruction. On the
question of personal requirement of plaintiff to start a medicine shop, the
trial court recorded a finding that in the front portion of building landlord
would start his business as Chemists and Druggists and the rear of the building
would be utilized by him for his residence. It was further held that as the
landlord's requirement was a composite one in that he wanted to reconstruct the
building and then use the whole of it for himself, therefore, the tenant was
not entitled to be inducted in the reconstructed building which he would have
been entitled to claim under section 18 of the Madhya Pradesh Accommodation
Control Act, 1961 ('Act' for short).
An appeal by the tenant to the District Court
elicited in para 20 a finding that though the landlord was studying he might
choose his career for business after he completed his education and he had got
Rs. 8,000 in a fixed deposit account in a bank and even though he obtained a
decree against the firm of M/s. Goral Parmanand he had not got actual
possession as the litigation was still pending and, therefore, the plaintiff's
requirement of the whole building was established. The finding that the house
was in dilapidated condition and required reconstruction was affirmed.
When the matter reached the High Court in
second appeal by the tenant an application under Order VI, rule 17, Code of
Civil 610 Procedure, was made praying for an amendment to the written statement
alleging that the firm Goraldas Parmanand has vacated the whole of the
remaining portion of the building excluding the premises in possession of the
tenant measuring 7' X 22' and that the plaintiff has obtained actual possession
of the same and if this aspect was taken into consideration the plaintiff
landlord would not be entitled to a decree for eviction under s. 12(1)(f) of
the Act. The High Court rejected the application observing that the adjoining
portion occupied by firm Goraldas Parmanand was vacated by the firm as far back
as in the year 1972 and therefore the application for amendment filed 3 1/2
years after the filing of the appeal must be rejected on the ground of delay
and laches. Further, despite the judgment of this Court in Pasupuleti
Venkateswarlu v. The Motor and General Traders, the High Court felt
considerable hesitation in taking note of this event subsequent to the passing
of the decree for eviction by the trial court because of its earlier decision
in Taramal v. Laxaman Sewak and Ors in which it was held that the definition of
'tenant' in the Act would not enable a tenant, though in possession but against
whom a decree or order for eviction has been made, to invite the Court to take
notice of events subsequent to the passing of the decree for eviction by the
trial court. The decision of this Court was distinguished on the ground that
the definition of the expression 'tenant' in Andhra Pradesh Building (Lease
Rent and Eviction) Control Act, 1960, was somewhat different and was wide
enough to include such persons. The High Court accordingly rejected the
application and dismissed the second appeal confirming the decree for eviction.
Section 12(1)(f) under which eviction of the
tenant is sought by the landlord reads as under:- "that the accommodation
let for non-residential purposes is required bona fide by the landlord for the
purpose of continuing or starting his business or that of any of his major sons
or unmarried daughters if he is the owner thereof or for any person for whose
benefit the accommodation is held and that the landlord or such person has no
other reasonably suitable non residential accommodation of his own in his
occupation in the city or town concerned." In order to be able to seek
eviction of a tenant under s. 12(1)(f) the landlord has not only to establish
that he bona fide requires the 611 accommodation let to the tenant for
non-residential purposes for the purpose of continuing or starting his business
but he must further show that the landlord has no other reasonably suitable
nonresidential accommodation of his own in his occupation in the city or the
town concerned.
The landlord in this case seeks eviction of
the tenant from a building let for non-residential purpose. He can obtain
possession either for continuing or starting his business. He was a student at
the relevant time. He appeared to have completed his education thereafter. It is
stated in the plaint unambiguously that he wanted to start business by opening
a medicine shop. In other words, he wanted to start a Chemist and Druggist
shop. He must, therefore, show that he has not got in his possession a
reasonably suitable non- residential accommodation of his own in his occupation
in the town of Bilaspur.
The suit building, as earlier observed, is in
the city of Bilaspur and situated in Sadar Bazar, obviously a business
locality. Respondent-landlord claims to be the owner of the whole building. The
suit premises in possession of the tenant in which he is carrying on a small
kirana shop admittedly admeasures 7 frontage on the main road and 22 in depth.
In other words it is 7'X 22'. The whole building of which demised premises form
a small part appears to be having a frontage of 28. 3 passage has to be
excluded. The premises in possession of the tenant has a frontage of
The length of the building or what is styled
as depth was given out to us as 90 by learned counsel for respondent- landlord.
18' frontage with 90' depth was thus in possession of firm Goraldas Parmanand.
Respondent landlord had also initiated proceedings for obtaining possession of
the premises occupied by firm Goraldas Parmanand on the same ground, namely,
that he wanted to start his business of Chemists and Druggists in the building.
The question is whether the premises occupied
by firm Goraldas Parmanand has been vacated by the firm. If the answer is in
affirmative, the respondent landlord has thus obtained vacant possession of the
whole of the premises occupied by firm Goraldas Parmanand. Looking to the map
annexed to the plaint and the evidence led in the case and the dimensions of
the premises stated at the hearing of this appeal the area vacated by the
previous tenant would be 18'X90' plus portion at the back of the premises
occupied by the present appellant which would be 7'X 68' and it 612 has come in
possession of the respondent. The last question would be if landlord obtained
vacant possession subsequent to the decree passed against the present appellant
tenant by the Trial Court, whether the subsequent event could be noticed by the
court for moulding the decree against the present appellant tenant.
Section 12 starts with a non-obstante clause
thereby curtailing the right of the landlord to seek eviction of the tenant
which he might have under any other law and the right of eviction is made
subject to the overriding provision of section 12. It is thus an enabling
section. In order to avail of the benefit conferred by section 12 to seek
eviction of the tenant the landlord must satisfy the essential ingredients of
the section. The landlord in this case seeks eviction of the tenant under
section 12(1)(f). He must, therefore, establish (i) that he requires bona fide
possession of a building let for non-residential purpose for continuing or
starting his business; and (ii) that he has no other reasonably suitable
non-residential accommodation of his own in his occupation in the city or town
concerned. The burden to establish both the requirements of section 12(1)(f) is
squarely on the landlord. And before an allegation of fact to obtain the relief
required is permitted to be proved, the law of pleadings require that such
facts have to be alleged and must be put in issue.
Ordinarily, therefore, when a landlord seeks
eviction under section 12(1)(f) the court after satisfying itself that there
are proper pleadings must frame two issues namely (i) whether the plaintiff
landlord proves that he bona fide requires possession of a building let to the
tenant for non- residential purpose for continuing or starting his business,
and (ii) whether he proves that he has no other reasonably suitable
non-residential accommodation of his own in the city or town concerned. Without
elaborating we must notice a well established proposition that any amount of
proof offered without pleadings is generally of no relevance.
Turning to the pleadings in this case the
plaintiff in para 6 of the plaint has stated as under:- "The plaintiff
intends to start his own business in the said building after the said
reconstruction. He intends to open a medicine shop therein. The plaintiff bona
fide requires the suit house for the above purpose. He has no other suitable
accommodation for the same in the town." The cryptic averment is that the
plaintiff has not got any other reasonably suitable accommodation in the same
town.
However, 613 in para 4 of the plaint it is
stated 'that the major portion of the building is in occupation of the firm
Goraldas Parmanand and the plaintiff has already obtained a decree for its
eviction therefrom'. The defendant in his written statement has in term stated
that the defendant is in possession of a small portion of the building, the
remaining portion of which was in possession of firm M/s. Goraldas Parmanand.
In para 6 of the written statement it is further stated that on his own
admission, the plaintiff has got a suitable alternative accommodation being the
premises for which a decree of eviction is obtained for doing business and
which is more than sufficient for his requirement. The learned Trial Judge
framed Issue No. 2(a) on the question whether the plaintiff landlord had no
other reasonably suitable accommodation of his own in his occupation in the
city. While recording finding on this issue the cryptic observation in para 19
of the judgment is that the plaintiff is a student and he has no other
accommodation for starting his own business. There is not the slightest
reference to the decree admittedly obtained by the plaintiff against firm M/s.
Goraldas Parmanand which firm was carrying on business in a portion of the
building which the plaintiff himself has described as the major portion of the
building, the suit premises being a small portion of the whole building. In the
first appeal this contention is disposed of by observing that the alternative
accommodation which the defendant has pleaded in his written statement is under
litigation and therefore it cannot be treated as available to the plaintiff.'
In the second appeal in the High Court the defendant appellant moved an
application under Order VI Rule 17 for amendment of the written statement for
elaborating what was already stated that not only the decree obtained by the
plaintiff against the adjoining tenant of the same building namely firm of M/s.
Goraldas Parmanand has become final but the plaintiff in execution of the
decree way back in 1972 obtained actual possession of the whole of area
occupied by that firm and that forms major portion of the whole building. This
application, though, in our opinion, to be wholly superfluous in view of the
pleadings hereinbefore set out and in view of the fact that the burden of proof
of establishing that the landlord was not in possession of a reasonably
suitable accommodation in the same town was on the plaintiff was rejected on
untenable ground that the defendant appellant was guilty of delay and laches.
This application for amendent deserves to be granted, and we grant the same.
What is its impact ? Even while rejecting the application the High Court in
terms observed in para 4 of its judgment as under:- 614 'Adjoining portion was
vacated by firm Goraldas Parmanand as far back as in the year 1972'.
The High Court thus had before it a fact
beyond dispute and beyond controversy that the major portion of the building
was vacated by the adjoining tenant way back in 1972. This was an
uncontroverted fact. Therefore remand on this point is an exercise in futility
because the fact alleged in the application for amendment is admitted. After
rejecting the application on wholly untenable ground the High Court in 1976
affirmed the finding wholly contrary to record as available at that stage that
the plaintiff landlord had no other reasonably suitable non-residential
accommodation of his own in his occupation in the city even though on
landlord's own admission he had acquired vacant possession of a major portion
of the building let for non-residential purpose as far back as 1972. In the
course of hearing we were repeatedly told that the finding of facts are
sacrosanct. The finding of fact ignoring incontrovertible admitted position
which would non-suit the plaintiff if upheld would be travesty of justice. The
burden being on the plaintiff to show that he had no other reasonably suitable
accommodation for carrying on the business which he wanted to start in the suit
premises, it was for the plaintiff to show that he had not acquired possession
from firm Goraldas Parmanand. Alternatively the plaintiff should have shown
that the said adjacent accommodation was not reasonably suitable for the
business he wanted to start. He has done neither. On the contrary plaintiff has
admittedly adopted a position in the plaint that he not only wanted suit
premises but also the adjoining premises of which he had obtained possession
for starting his business. In such a situation if the High Court had kept in
view that the plaintiff had already with him viz. possession of a building
having 18 frontage on the main road and 90 depth plus portion at the back of
the suit premises in his possession it would have to come to an affirmative
conclusion that the plaintiff had sufficient accommodation for starting his
business as a Chemists and Druggists. It was no where pointed out by the
plaintiff that the shop of Chemists and Druggists or a medicine shop would
require frontage of more than 18'. 18' frontage on a main road in a city like
Bilaspur is sufficiently attractive and accommodating. The depth of the shop as
given out to us being 90'; therefore landlord has now in his possession shop
admeasuring 18' x 90' plus the area of 7' x 90' at the back of the suit
premises being part of the same building. Would this not provide more than
ample accommodation to the plaintiff to start his business as a Chemists and
Druggists ? Not one 615 word has been said that the accommodation which is
already in possession of the plaintiff is neither suitable nor reasonably
suitable nor sufficient for starting his business. In fact the very stand of
plaintiff landlord as accepted by the High Court that some portion at the back
would be utilised by landlord for residence would affirmatively establish that
landlord has more than enough vacant accommodation in possession for starting
his business.
The difficulty which the High Court
experienced was whether a tenant under a decree of eviction could invite the
Court to take into consideration the events subsequent to passing of the decree
which if noticed would non-suit the landlord.
The definition of expression 'tenant' in the
Act excludes from its operation a person in possession against whom any order
or decree for eviction has been made. The High Court referred to its earlier
judgment in Taramal's case wherein it was held that the protection to a
statutory tenant lapsed with the passing of a decree and such a person had no
right to bring on record new circumstances which were not in existence at the
date of the passing of the decree.
This approach wholly overlooks the scheme of
the Rent Restriction Act. The M.P. Act enables a landlord to seek eviction of a
tenant and obtain possession under various circumstances set out in section 12.
If a landlord bona fide requires possession of a premises let for residential
purpose for his own use, he can sue and obtain possession.
He is equally entitled to obtain possession
of the premises let for non-residential purposes if he wants to continue or
start his business. If he commences the proceedings for eviction on the ground
of personal requirement he must be able to allege and show the requirement on
the date of initiation of action in the Court which would be his cause of
action. But that is not sufficient. This requirement must continue throughout
the progress of the litigation and must exist on the date of the decree and
when we say decree we mean the decree of the final court. Any other view would
defeat the beneficial provisions of a welfare legislation like the Rent
Registration Act. If the landlord is able to show his requirement when the
action is commenced and the requirement continued till the date of the decree
of the Trial Court and thereafter during the pendency of the appeal by the
tenant if the landlord comes in possession of the premises sufficient to
satisfy his requirement, on the view taken by the High Court, the tenant should
be able to show that the subsequent events disentitled the plaintiff, on the
only ground that here is tenant against whom a decree or order for 616 eviction
has been passed and no additional evidence was admissible to take note of
subsequent events. When a statutory right of appeal is conferred against the
decree or the order and once in exercise of the right an appeal is preferred
the decree or order ceases to be final. What the definition of 'tenant'
excludes from its operation is the person against whom the decree or order for
eviction is made and the decree or order has become final in the sense that it
is not open to further adjudication by a court or heirarachy of courts. An
appeal is a continuation of suit.
Therefore a tenant against whom a decree for
eviction is passed by Trial Court does not lose protection if he files the
appeal because if appeal is allowed the umbrella of statutory protection
shields him. Therefore it is indisputable that the decree or order for eviction
referred to in the definition of tenant must mean final decree or final order
of eviction. Once an appeal against decree or order of eviction is preferred
the appeal being a continuation of suit, landlord's need must be shown to
continue to exist at appellate stage. If the tenant is in a position to show
that the need or requirement no more exists because of subsequent events, it
would be open to him to point out such events and the Court including the
appellate court has to examine, evaluate and adjudicate the same.
Otherwise the landlord would derive an unfair
advantage. An illustration would clarify what we want to convey. A landlord was
in a position to show he needed possession of demised premises on the date of
the suit as well as on the date of the decree of the trial court. When the
matter was pending in appeal at the instance of the tenant, the landlord built
a house or bungalow which would fully satisfy his requirement. If this
subsequent event is taken into consideration, the landlord would have to be
non-suited. Can the court shut its eyes and evict the tenant ? Such is neither
the spirit nor intendment of Rent Restriction Act which was enacted to fetter
the unfettered right of re- entry. Therefore when an action is brought by the
landlord under Rent Restriction Act for eviction on the ground of personal
requirement, his need must not only be shown to exist at the date of the suit,
but must exist on the date of the appellate decree, or the date when a higher
court deals with the matter. During the progress and passage of proceeding from
court to court if subsequent events occur which if noticed would non suit the
plaintiff, the court has to examine and evaluate the same and mould the decree
accordingly. This position is no more in controversy in view of a decision of
this Court in Pasupuleti Venkateswarlu (supra) where Justice Krishna Iyer
speaking for the Court observed as under:- "We affirm the proposition that
for making the right or remedy claimed by the party just and meaningfully as
617 also legally and factually in accord with the current realities, the court
can, and in many cases must, take cautions cognisance of events and development
subsequent to the institution of the proceeding provided the rules of fairness
to both sides are scrupulously observed." In order to fully evaluate the law
laid down in the aforementioned extracted passage it is worthwhile to give the
background of facts in which it was made. The appellant landlord in that case
was the owner of a large building which was leased out in separate portions to
several tenants. One of such tenants was the respondent. The landlord wanted to
start a business in automobile spares and claimed eviction of the respondent
under the Rent Restriction Act being Andhra Pradesh Buildings (Lease, Rent and
Eviction) Control Act, 1960. The petition was resisted and the Rent Controller
dismissed the petition. The appeal of the landlord failed. But in revision the
High Court chose to remand the case to the appellate authority and the
appellate authority in turn remitted the case to the Trial Court for fresh
disposal in accordance with certain directions. The landlord preferred a
revision petition against the order of remand by the first appellate court.
The High Court dismissed the action of the
landlord taking cognisance of a subsequent event namely that the landlord
acquired possession of a reasonable suitable non-residential building in the
same town. In appeal to this Court it was seriously contended that it was
improper for the High Court to take into consideration the subsequent events
and this contention was negatived inter alia on the ground in the passage
extracted above. Therefore, it is now incontrovertible that where possession is
sought for personal requirement it would be correct to say that the requirement
pleaded by the landlord must not only exist on the date of the action but must
subsist till the final decree or an order for eviction is made. If in the
meantime events have cropped up which would show that the landlord's
requirement is wholly satisfied then in that case his action must fail and in
such a situation it is incorrect to say that as decree or order for eviction is
passed against the tenant he cannot invite the court to take into consideration
subsequent events. He can be precluded from so contending when the decree or order
for eviction has become final. In view of the decision in Pasupuleti's case
(supra) the decision of the Madhya Pradesh High Court in Taramal's case must be
taken to have been overruled and it could not be distinguished only on the
ground that the definition of 'tenant' in the Madhya Pradesh Act is different
from the one in Andhra Pradesh 618 Act. Therefore, the High Court was in error
in declining to take this subsequent event which was admittedly put forth in
the plaint itself into consideration.
The landlord wants to start his business as
Chemists and Druggists. On his own admission he has in his possession a shop
admeasuring 18' X 90' plus 7' X 68' forming part of the same building the
remaining small portion of 7' X 22 is occupied by the tenant. The landlord has
not stated that so much space with 18' frontage is not reasonably suitable for
starting his business as Chemist and Druggist. In that view of the matter the
plaintiff's suit for eviction on the ground mentioned in section 12(1)(f) must
fail and this is being done by not disturbing any finding of fact but relying
upon the admission of the plaintiff himself.
There is an error apparent on the face of the
record inasmuch as when the High Court was faced with a dilemma whether the
landlord required the whole of the building including demised premises now in
possession of the appellant tenant for starting his business of Chemists and
Druggists and when the High Court had before it an indisputable fact that the
respondent landlord has obtained vacant possession of a major portion of the
building which was in possession of firm M/s. Goraldas Parmanand, was it
necessary for him to have any additional accommodation ? The High Court got
over this dilemma by observing and by affirming the finding of the subordinate
courts that the remaining portion of the premises would be used by the landlord
for his residence and even though the portion utilised for the purpose of
running the business would be smaller compared to the one to be utilized for
the residence it would still not be violative of sub-section (7) of sec. 12
because such a composite user would not radically change the purpose for which
the accommodation was let. This finding is contrary to record and pleadings.
Minutely scanning the plaint presented by the landlord there is not the
slightest suggestion that he needs any accommodation for his residence. He has
not even stated whether at present he is residing in some place of his own
though he claimed to be residing in the same town. He does not say whether he
is under any obligation to surrender that premises. Section 12(1)(e)
specifically provides for a landlord obtaining possession of a building let for
residential purposes if he bona fide requires the same for his own use and
occupation.
But there is an additional condition he must fulfill
namely he must further show that he has no other reasonably suitable
residential accommodation of his own in his 619 occupation in the city or town
concerned. Utter silence of the landlord on this point would be a compelling
circumstance for the court not to go in search for some imaginary requirement
of the landlord of accommodation for his residence. In the context of these
facts the Trial Court and the first Appellate Court committed a manifest error
apparent on the record by upholding the plaintiff's case by awarding possession
also on the ground neither pleaded nor suggested. The landlord must have been
quite aware that he cannot obtain possession of any accommodation for his
residence. Therefore, the finding of the High Court and courts subordinate to
it that the respondent-landlord requires possession of the whole of the
building including the one occupied by the tenant for starting his business as
Chemists and Druggists as also for his residence is vitiated beyond repair.
Once impermissible approach to the facts of the case on hand is avoided
although facts found by the Courts are accepted as sacrosanct yet in view of
the incontrovertible position that emerges from the evidence itself that the
landlord has acquired major portion of the building in which he can start his
business as Chemists and Druggists he is not entitled to an inch of an extra
space under section 12(1)(f) of the Act.
Respondent landlord also sought possession on
the ground set out in section 12(1)(h) which reads as under:- "that the
accommodation is required bona fide by the landlord for the purpose of building
or rebuilding or making thereto any substantial additions or alternations and
that such building or re-building or alterations cannot be carried out without
the accommodation being vacated." In order to obtain possession under
section 12(1)(h) the landlord again has to establish his bona fide requirement
of the accommodation in possession of the tenant for the purpose of building or
rebuilding or making thereto any substantial additions or alterations and must
further show that such building or re-building or alterations cannot be carried
out without the accommodation being vacated. The case of the landlord on this
point is that he wants possession of the whole of the building including the
suit premises and he has Rs. 8,000 in a fixed deposit account and that as the
building is in a dilapidated condition, he would reconstruct the same and use
it for himself both for residence and starting his business.
If landlord acquires possession under section
12(1)(h), section 620 18 imposes corresponding obligation which reads as
under:- "18. Recovery of possession for repairs and rebuilding and
re-entry.-(1) In making any order on the grounds specified in clause (g) or
clause (h) of sub- section (1) of Sec. 12, the Court shall ascertain from the
tenant whether he elects to be placed in occupation of the accommodation or
part thereof from which he is to be evicted and, if the tenant so elects, shall
record the fact of the before election in the order and specify therein the
date on or which he shall deliver possession so as to enable the landlord to
commence the work of repairs or building or re-building, as the case may
be." The courts declined to grant any relief to the tenant under section
18 on the ground that as the landlord's requirement is a composite one, the
tenant is not entitled to be re- inducted in the building that may be
reconstructed by the landlord after obtaining possession of the same. Now once
it is held that the landlord is not entitled to possession for his residence
and he has more than enough accommodation in his possession for carrying on his
business, the composite requirement disappears. Landlord's case will,
therefore, have to be exclusively examined in the context of section 12(1)(h).
Two contentions were urged on behalf of the
appellant to negative the case of the landlord in this behalf; one that the
building is not in a dilapidated condition and secondly it can be repaired
without vacating the premises.
As all the courts have concurrently found
that the building is in a dilapidated condition, this finding is entitled to
respect and it is not proper for us to interfere with the same. The question
would however be whether the landlord wants to reconstruct the demised portion
of the premises even though he is not entitled to acquire possession of the
same for his use and that he would be under an obligation to re-induct the
tenant after its construction. The further question is whether the landlord is
interested in reconstructing the whole building. It was alternatively contended
that no attempt is made to find out whether the landlord would be in a position
to reconstruct that part of the building which has come in his possession once
he is not in a position to acquire possession of the demised premises for his
own use. This situation calls for a fresh examination of the case of the
landlord under section 12(1)(h). If landlord is to be awarded possession under
section 12(1)(h) on the footing that, that is the only ground on which he can
seek possession, it will have to be found out after giving oppor- 621 tunity to
the landlord to prove whether he is interested in re-building that portion of
the building which is occupied by the appellant and further the court should
give necessary direction under section 18. In that event the court will have
also to ascertain whether the portion which is now in possession of the
landlord and which he may be interested in reconstructing can be reconstructed
without the tenant vacating the demised premises. As the whole foundation of
the landlord's case of composite requirement disappears the matter has to be
examined afresh on the footing that the landlord has come to the court for
possession under section 12(1)(h) only and if he succeeds in his prayer for
possession on the ground mentioned in section 12(1)(h) it would be necessary
for the court to give appropriate direction under section 18 of the Act. As the
matter has not been examined from this angle by any Court it has become
inevitable, even though the litigation is pending for a long time, to remit the
case for examination of this aspect. The question is whether the remand should
be to the first appellate court or to the trial court. As the first appellate
court is the fact finding court, in our opinion it would be appropriate for us
to remit the case, after setting aside the decree of the first appellate court
as well as the High Court, to the first appellate court to ascertain:- (i)
Whether the landlord is interested in reconstructing that portion of the
building which is in possession of the tenant as demised premises;
(ii) Whether the landlord would be in a
position to reconstruct the building in his possession without the tenant being
required to vacate the demised premises; and (iii)if the first two queries are
answered in favour of the landlord, what should be the appropriate directions
to be given in favour of the tenant as enjoined by S. 18 ? Accordingly, this
appeal is allowed and the decree of eviction made by the trial court and
confirmed by the 1st appellate court and also by the High Court is set aside.
The prayer of the landlord for possession under section 12(1)(f) is negatived
as he is not entitled to recover possession on the ground mentioned in section
12(1)(f). The matter is remanded to the 1st Appellate Court for the limited
purposes set out in the just preceding paragraph. In the circumstances of the
case there will be no order as to costs.
622 PATHAK J. This is tenant's appeal by
special leave against the judgment of the High Court of Madhya Pradesh arising
out of a suit for ejectment.
The suit was filed by the respondent,
Raghunath Prasad.
He claimed to be the owner of a building in
Sadar Bazar, Bilaspur. One portion of the building was occupied by a firm
Goraldas Permanand. According to the plaint, the entire building was in a
dilapidated condition and the plaintiff intended to reconstruct the front
portion of the building and to effect major repairs in the rear portion. In
order to do so it was said to be necessary that the defendants should vacate
the accommodation. In regard to the other portion, the plaintiff stated that he
had obtained a decree for ejectment against Goraldas Parmanand. The plaintiff
also alleged that he intended to start the business of a medicine shop and for
that purpose he required the accommodation occupied by the defendants as it
faced the main road in Sadar Bazar, and that he had no other suitable
accommodation in the town for such business.
The suit was resisted by the defendants, and
a number of pleas were taken. In particular it was denied that the
accommodation occupied by them was dilapidated and that it was bona fide
required by the plaintiff. It was claimed that in view of the decree for
ejectment against Goraldas Parmanand the plaintiff had suitable alternative
accommodation for his proposed business.
The trial court found that the entire
building, including the accommodation occupied by the defendants, needed
reconstruction and repairs, and that for the purpose of his projected business
the plaintiff had bona fide need of the accommodation held by the defendants.
It was observed that the accommodation occupied by Goraldas Parmanand was still
under litigation as an appeal was pending in the case.
Holding that the grounds under section 12(1)
(f) and 12(1)(h) of the Madhya Pradesh Accommodation Control Act were made out,
the suit was decreed for ejectment.
The defendants preferred an appeal and the
first appellate court while dismissing the appeal maintained the findings of
the trial court and upheld the order of ejectment.
A second appeal by the defendants was
dismissed by the High Court on 17th April, 1976. During the pendency of the
appeal the defendants moved an application under Order VI, Rule 17 of the Code
of Civil Procedure for leave to amend their written statement 623 by adding the
plea that the plaintiff had secured vacant possession of the adjoining portion
of the building from Goraldas Parmanand in the year 1972, and that the case
should be remanded for deciding whether the accommodation acquired was
reasonably suitable for starting a medicine shop, the purpose for which the
plaintiff said he required the accommodation held by the defendants. The High
Court rejected the application observing that it had been moved three and a
half years after the event had taken place that it was not made bona fide but
was intended merely to gain time and would result in grave injustice to the
plaintiff.
The High Court also observed that even if the
amendment was allowed it would not affect the decision of the case, because as
the plaintiff's need extended to entire building his securing vacant possession
of one part would not conclude the matter. It was pointed out that the
plaintiff intended to reconstruct the entire portion of the building including
the accommodation occupied by the defendants, as well as effect major repairs
to the rear portion of the building. In place of the shop of the defendants
with a frontage of 7 and a depth of 22 and the adjoining shop with a frontage
of 10 and a depth of 90, the plaintiff intended to demolish the front portion
of both the shops and to reconstruct the building with a new shop having a wide
frontage of 22' and a depth of 7', and to reside in the rear portion of the
building. The High Court added that residence in the rear portion of the
accommodation would not alter the nature of the accommodation as the residence
would be incidental to the main purpose of carrying on the medicine business in
the front portion of the building.
The defendants having obtained special leave
from this Court this appeal is now before us.
As analysis of the plaint shows that the
ejectment of the appellants was sought on two grounds. The respondent intended
to reconstruct the front portion of the dilapidated building and to repair the
rear portion and according to him this required the appellants to vacate the
accommodation occupied by them. That clearly is the ground envisaged by s.
12(1)(h), Madhya Pradesh Accommodation Control
Act. That ground stood on its own. The respondent also intended to open a
medicine shop in the front portion of the building, and he pleaded that he had
no other accommodation for the purpose. That brings into play s. 12(1)(f) of
the Act. The plea shows that as the dilapidated building required
reconstruction and repairs, the respondent indended to avail of the opportunity
to so effect the structural alterations as to accommodate a medicine 624 shop
which he planned to start as a business in the premises. This latter ground
arose as a sequel to the first.
If the first ground was made out, the
appellants would have to vacate the portion held by them, and if that had been
the only ground the court would automatically be called upon to consider s. 18
of the Act, which entitles the tenant at his option to be reinstated in a
portion of the reconstructed building. There was the further ground that the
respondent proposed to start his own business in the front portion of the
building, and the finding of the High Court that the respondent wanted the rear
portion of the building for his personal residence.
The subordinate courts were influenced by the
consideration that although the respondent had obtained a decree for ejectment
against Goraldas Parmanand, the case continued to be the subject of litigation
and therefore it could not be said that the respondent was in possession of
alternative accommodation. However, while the second appeal was pending in the
High Court the appellants applied for amendment of their written statement to
include the plea that the respondent had meanwhile obtained possession from
Goraldas Parmanand. The High Court declined to permit the amendment. In doing
so, it seems to me that the High Court erred. It was an essential part of the
appellants' defence from the outset that the portion let out to Goraldas
Permanand constituted suitable alternative accommodation, and therefore they
should not be ejected. It is immaterial that the amendment was sought more than
three years after possession of the portion had passed to the respondent. The
High Court was bound to take the fact into consideration because, as is well
settled now, in a proceeding for the ejectment of a tenant on the ground of
personal requirement under a statute controlling the eviction of tenants,
unless the statute prescribes to the contrary the requirement must continue to
exist on the date when the proceeding is finally disposed of either in appeal
or revision, by the relevant authority. That position, to my mind, is indisputable.
The High Court should have allowed the amendment. The High Court, alternatively
observed that the respondent wanted to accommodate his shop in the front
portion of the building and therefore, of necessity, he would require the
portion occupied by the appellants. That conclusion is based on the findings
rendered by the courts below, which findings the High Court respected as
findings of fact. But the High Court failed to note that both the courts below
had proceeded on the assumption that the adjoining portion occupied by Goraldas
Parmanand was not immediately available on account of litigation. It is for
that reason that permitting the amendment sought by the 625 appellants became
relevant and, indeed, imperative. If the respondent has obtained possession of
that portion, and that does not seem to be disputed, it becomes a serious
question for decision whether the respondent needs the front portion of the
building for his medicine shop and, if so, according to dimensions proposed by
him. In the consideration of that question the element of the respondent's need
for the rear portion of the building for his personal residence must be
ignored. That need was never pleaded in the plaint and, as will be seen from s.
12(1)(e) of the Act, several considerations need to be satisfied before the
need can be held proved. This aspect of the matter was apparently not brought
to the notice of the High Court and therefore it fell into the error of taking
this element into account.
My brother Desai has in his judgment held
that the respondent can accommodate his medicine shop in the portion vacated by
Goraldas Parmanand and he has indicated the dimensions of the shop which appear
reasonable to him. With great respect I am unable to concur with what he has
said.
Whether or not the shop should be located in
the front portion of the building and what should be its dimensions will turn
on the evidence adduced by the parties in that behalf. The original record of
the suit is not before us, and without knowledge of the state of the evidence I
would refrain from a finding on the point. Indeed, it seems to me in the
circumstances of this case to be pre-eminently a task to be entrusted to a
subordinate court.
The position which then emerges is this. The
respondent has made out his case under s. 12(1)(h) of the Act that he requires
the building, including the portion occupied by the appellants, for
reconstruction of the front portion and repairs to the rear portion, and that
necessitates that the appellants vacate their accommodation. This matter is
concluded by the concurrent findings of fact rendered by the trial court and
the first appellate court. It is also concluded by concurrent findings of fact
that the respondent needs a portion of the building for starting the business of
a medicine shop. What should be the location of the shop and what its
dimensions is a matter which remains for decision.
And there is the further question of
considering the availability of s. 18 of the Act to the appellants. Both these
questions, I think, should be left to the first appellate court.
Accordingly, I allow the appeal, set aside
the judgment and decree of the High Court and of the first appellate court and
remand 626 the case to the latter court for permitting the appellants to amend
their written statement and allowing the parties to lead such evidence as is
consequentially called for, and thereafter to decide the case afresh in the
light of the observations made above. I would leave the parties to bear their
costs.
S.R. Appeal allowed.
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